[1998] OLRB REP. JULY/AUGUST 695
3514-97-U The Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsworkers, Jerry Coelho, and Torn Oldham; International Union of Bricklayers and Allied Craftsworkers, Local 1 and Kerry Wilson; Interna-tional Union of Bricklayers and Allied Craftsworkers, Local 2 and Danilo Buttazzoni; International Union of Bricklayers and Allied Craftsworkers, Local 5 and John Haggis, Applicants v. International Union of Bricklayers and Allied Craftsworkers, John T. Joyce, John J. Flynn, Frank Stupar, James Bowland and Michael Carlander and Interna-tional Union of Bricklayers and Allied Craftsworkers Local Union Officers and Em-ployees Pension Plan of Canada, Responding Parties
BEFORE: Lee Shouldice, Vice-Chair, and Board Members J. Knight and G. McMenemy
APPEARANCES: L A. Richmond, 1. Coelho, T Oldham, K Wilson, D. Buttazzoni and J. Haggis for the applicants; Donald K. Eady Joel Freedman and Graeme Aitken, for the responding parties.
DECISION OF THE BOARD: July 15, 1998.
I. Introduction
This is an application brought before the Board pursuant to section 96 of the Labour Relations Act, 1995 (hereinafter referred to as "the Act"). This proceeding came on for hearing before this panel of the Board on March 31, 1998, and was argued on that same date on the basis of facts and documents which were agreed to amongst the parties.
The statutory provision around which this proceeding revolves is section 150 of the Act, which deals with the administration of "employment benefit plans", and which was part of the "Bill 80" amendments made to the Act in 1993. Section 150 of the Act reads as follows:
(1) If benefits are provided under an employment benefit plan primarily to members of one local trade union or to their dependents or beneficiaries, the local trade union is entitled to appoint at least a majority of the trustees who administer the plan, excluding the trustees who are appointed by employers.
(2) If benefits are provided under such a plan primarily to members of more than one local trade union or to their dependents or beneficiaries, those local trade unions are entitled together to appoint at least a majority of the trustees who administer the plan, excluding the trustees who are appointed employers.
(3) If, in the circumstances described in subsection (2), benefits are provided to members outside of Ontario or to their dependents or beneficiaries, the local trade unions are entitled together to appoint that proportion of the trustees (excluding trustees appointed by employers) that corresponds to the proportion that the members in Ontario of the local trade unions bear to the total number of members participating in the plan.
(4) Subsections (1), (2) and (3) apply despite any provision to the contrary in any agreement or other document.
(5) Unless otherwise agreed by the interested local trade unions, the appointment of trustees under subsection (2) or (3) shall be determined by a majority vote of those local trade unions voting, with each local trade union being entitled to cast a single ballot.
(6) In this section, "employment benefit plan" means a plan that provides any type of benefit to an individual or his or her dependents or beneficiaries because of the individual's employment or his or her membership in a trade union and includes a pension plan or another arrangement whereby money is contributed by or on behalf of the individual for retirement purposes.
The applicants also assert that the conduct of the responding parties in this proceeding constitutes a violation of section 149 of the Act.
As noted above, the factual background underlying this application was not in dispute. The Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsworkers (hereinafter "the OPC") is a council of trade unions comprising all of the local unions of the Interna-tional Union of Bricklayers and Allied Craftsworkers (hereinafter "the International") in Ontario. The applicants styled as Locals 1, 2 and 5 are each local unions of the International, and a member local union of the OPC. The business managers of Locals 1, 2 and 5 are Keny Wilson, Danio Buttazzoni and John Haggis, respectively.
The applicants assert that in September, 1997, Messrs. Buttazzoni, Haggis and Wilson were properly elected as trustees to an employment benefit plan, in accordance with section 150 of the Act, and that their election has not been recognized by the International. In fact, it is not denied that on or about October 2, 1997, Messrs. Buttazzoni, Haggis and Wilson wrote to John Joyce, the President of the International (and also a member of the International's Executive Board) requesting, amongst other things, a meeting in Toronto, and certain information relating to the Local Union Officers and Employ-ees Pension Plan. There was no reply to that letter. A further letter, dated November 4, 1997, was sent to Mr. Joyce by applicants' counsel. Mr. Joyce did respond to that letter, indicating that he was of the view that the three Ontario locals did not have the right to appoint any trustees to the pension plan. This application followed.
There are two core issues in dispute between the parties. The first issue relates to the nature of the pension plan itself. It is the applicants' view that there are, in fact, two pension plans - one that relates to Canada, and one that relates to the United States. The applicants' claim relief under the Act only with respect to the plan that relates to Canada. The responding parties, on the other hand, assert that there is, in reality, only one plan, and that it applies to members in both Canada and the United States. Accordingly, the responding parties urge the Board to apply section 150 - if at all - in that context.
We say "if at all" because the responding parties argue that the pension plan itself ought not to be considered to be an "employment benefit plan" for the purposes of section 150 of the Act. They argue that section 150 of the Act was never intended to cover the type of plan in question before the Board, and that the Board ought not to interpret the legislation to encompass the plan in place between the parties. The applicants, on the other hand, claim that the plan in question fits neatly within the definition of "employment benefit plan" contained within the Act, and therefore that section 150 ought to apply to the parties.
In our view, it is appropriate to deal with the question of the nature of the pension plan first, and accordingly we do so, immediately below.
II. The Nature of the Pension Plan
At the outset, it should be noted that the plan in question here is one created for the benefit of local union officers and employees of the local unions, and not for the membership of the locals generally. The plan provides, amongst other things, retirement and disability payment benefits to individuals who were, at relevant times, salaried officers or employees of a local union, conference, or related organization of the International, or to their dependents or beneficiaries.
There is no dispute that the genesis of the pension plan in question was an "Agreement and Declaration of Trust" dated April 15, 1969, entered into between the International and the four original trustees of the plan. This document was subsequently amended in May, 1983, and is now referred to as the "Restated Agreement and Declaration of Trust". For the purposes of this decision we will refer to the Restated Agreement and Declaration of Trust as "the trust document".
The trust document creates the "International Union of Bricklayers and Allied Craftsmen Local Officers and Employees Pension Plan", which is defined in the trust document, for the sake of convenience, as the "Local Officers and Employees Pension Fund". For the purposes of this decision, we will refer to this pension plan as "the pension plan". I note here, as did counsel for the applicants at the hearing, that at times the trust document (and others) do not distinguish between a pension "plan" and a pension "fund", which are two entirely different things. In fact, even a brief review of the trust document discloses that it is not particularly well written, inasmuch as it contains terms which one would expect to find defined in the document but, in fact, are not.
Accordingly, we have found the interpretation of the trust document to have been difficult and, at times, somewhat frustrating. Notwithstanding that, it appears to us that the trust document did not, in and of itself, initially establish two separate plans (i.e. a Canadian Plan and an American Plan) but rather one plan, the pension plan, which was envisaged as applying to local union officers and employees of the local unions in both the United States and in Canada.
There are some examples of such an intention contained in the trust document itself. Section 1.2 of the trust document defines the term "Local Union, Conference and District Council" as meaning "a Local Union, a State or Provincial Conference ... affiliated with and in good standing with the International Union in accordance with the provisions of the International Union's Constitution". The Constitution of the International identifies "Provincial Conferences" as a constituent element of the International, and describes how local unions in a province such as Ontario can create a provincial conference. Accordingly, then, it must have been anticipated by the parties that the trust document (and the pension plan created therein) would apply to union officials and employees of locals in Ontario.
We are supported in that conclusion by reference to the initial trust document (i.e. the trust document as initially approved on April 15, 1969). This document was provided to the Board in the bound materials immediately behind the plan document most recently flied with the Pension Commis-sion of Ontario (which we will discuss in more depth below). We note that that the initial trust document defines the concept of "Local Unions and Conferences" without reference to the concept of a "Provincial Conference", as the 1983 restatement does. The conclusion that we draw from the state of the current trust document is that it was anticipated that union officers and employees of Canadian locals would have access to the pension plan created from the trust document.
Interestingly, and somewhat cryptically, section 8.1 of the trust document speaks to the question of the law applicable to the document itself. It states:
This Trust is created and accepted in the District of Columbia. and all questions pertaining to the validity or construction of this Trust Agreement and of the acts and transactions of the parties hereto shall be in accordance with the laws of the District of Columbia.
With respect to all matters pertaining to a Plan or Plans adopted for Employees of Employers in Canada, the Province of Ontario shall be deemed the sites of the Trust Fund; and all questions pertaining to validity, construction and administration shall be determined in accordance with the laws of such Province.
We view this clause of the trust document as anticipating the future creation of "a Plan or Plans" relating specifically to Canada, within the framework of the trust document itself. It is extremely unusual (and therefore extremely unlikely) for the "applicable law" clause in one agreement to be made itself applicable to a future, separate document. We are of the view that this clause was seen as necessary to deal with the question of applicable law of "a Plan or Plans" arising out of the trust document itself.
Accordingly, we conclude that this provision reflects an expectation that, at some future date, the parties could create "a Plan or Plans" relating specifically to local unions in Canada. We also conclude that the trust document itself was intended by the parties to be applicable to the employees and officers of local unions in Canada.
The trust document establishes that the five persons who sit on the International's Executive Board are the trustees of the pension fund. It is this facet of the trust document which has led to the filing of this application. The trust document also sets out, amongst other things, the powers and obligations of the trustees. Section 4.19 of the trust document, which deals with amendments to the pension plan, reads as follows:
The Pension Plan may be amended by the Trustees from time to time, provided that such amend-ments comply with the applicable sections of the Internal Revenue Code, all applicable federal statutes and regulations, the contract articles creating the Trust Fund, and the purposes as set forth in this Trust Agreement. Additionally, and not by way of limitation, the Trustees may amend the Pension Plan, in the future, or retroactively, where they deem it necessary to maintain the continua-tion of the Trust Fund's tax exempt status or to preserve compliance with the then applicable Internal Revenue Code, applicable federal statutes, and any regulations or rulings issued with respect thereto.
There is no direct evidence before the Board that the trustees of the pension plan ever specifically utilized this provision with regard to their administration of the pension plan.
At the hearing, the Board was provided with two separate documents which appear to be plans. The first is entitled "International Union of Bricklayers and Allied Craftsmen Local Union Officers and Employees Pension Plan of Canada" (hereinafter "the Canadian Plan"). The document containing the Canadian Plan is said to reflect all amendments through January 1, 1993, and is stated to apply "to pensions awarded on and after January 1, 1987, and to people who become vested after that date". The second document is entitled "International Union of Bricklayers and Allied Craftsmen Local Union Officers and Employees Pension Plan (U.S.)" (hereinafter "the American Plan"), and is stated to reflect all amendments and apply to pensions awarded "on and after January 1, 1989, and to people who become vested after that date".
The Canadian Plan is registered with the Pension Commission of Ontario, in accordance with the Pension Benefits Act (R.S.O. 1990, c. P.8, as amended, hereinafter "the PBA") as Plan No. C012900. It was not disclosed when the Canadian Plan was first registered with the Pension Commis-sion. However, we note that the initial trust document dated April 15, 1969 (referred to above) has endorsed upon its face the number "12900", which corresponds with the registration number given to the Canadian Plan by the Pension Commission. It is likely, therefore, that the initial trust document was filed, at some point, with the Pension Commission. However, we do not know when that filing occurred.
Counsel for both the applicants and the responding parties took the Board through the terms of the Canadian and American Plans. We do not intend to review, in any depth, the different clauses referred to by counsel. There is no dispute that the pensions and other benefits provided to employees and officers of local unions in Ontario are governed by the Canadian Plan, and, likewise, that the pensions and other benefits to which employees and officers of local unions located in the United States are entitled are governed by the terms of the American Plan. It is evident from their respective provisions that the two Plans were intended to function in just that way. During the course of argument, counsel both suggested that at least one reason for the existence of the two documents was the different pension legislation in Ontario (the PBA) and the United States (the Employee Retirement Income Security Act of 1974, hereinafter "ERISA").
What is significant, for the purposes of this proceeding, is that the trustees of the Canadian Plan are identified in that plan as those persons designated as trustees in the trust document - that is, Messrs. Joyce, Flynn, Stupar, Bowland and Carlander, the individual responding parties and the five persons currently on the International's Executive Board. The applicants desire to dislodge three of these trustees, on the authority of section 150 of the Act. Section 150 of the Act makes reference to an "employment benefit plan". Counsel for the applicants argues that the Canadian Plan easily fits that definition. Counsel for the responding parties disagrees, arguing that the Canadian Plan and the American Plan are subsidiary plans to the larger pension plan created by the trust document. During the course of argument, counsel for the responding parties referred to both the Canadian and American Plans as "sub-plans" of the larger pension plan.
As evidence of this relationship, counsel for the responding parties made reference to a number of financial statements and auditors reports created on behalf of the pension plan. For example, the Financial Statements and Report of Independent Auditors for the year ended December 31, 1996 (the most recent financial statements available at the time of the hearing) make reference to only one pension plan, with American and Canadian net assets outlined separately. The auditor describes that plan as applying to officers and employees of both American and Canadian locals. Administrative costs are expended on behalf of both American and Canadian locals, and those allocated to Canadian operations are referred to in the statements as being allocated to "the Canadian segment". There are parallel references to "the United States segment" throughout the document. As well, the financial statements contain three schedules, each entitled "International Union of Bricklayers and Allied Craft-sworkers Local Union Officers and Employees Pension Plan". Two of the schedules outline the assets held and reportable transactions for the "United States segment" (apparently required by the U.S. Department of Labor Rules and Regulations for Reporting and Disclosure under ERISA), and a third reflects "Canadian Investments", or the investments in Canadian assets. This same basic structure is reflected by the financial statements and auditor's report for the year ended December 31, 1994 (the only other financial statements provided by the parties to the Board).
Having reviewed the documents and having considered the argument of counsel very carefully, we are of the view that there are currently two separate plans which arise out of the trust document, namely the Canadian Plan and the American Plan. The Canadian Plan is not a "subset" of the pension plan.
As noted above, the trustees of the Canadian Plan are the five individuals who compose the International's Executive Board. Arguably, this fact evidences that the Canadian Plan is merely part of the initial pension plan created by the trust document. However, it is evident that the Executive Board members of the International who comprised the trustees of the initial pension plan have, since 1983, created two plans where one previously existed. The Canadian Plan contains a large number of articles speaking to specific provisions contained in Canadian pension and tax legislation, which would have no bearing on pension obligations or rights in the United States. As observed above, the Canadian Plan was obviously created to deal with the unique pension and tax legislation applicable to pension and other plans created to benefit Canadians. This is highlighted by Section 5.09 of the Canadian Plan, entitled "Canadian Law", which states as follows:
Notwithstanding anything in this Plan, with respect to Covered Participants located in Canada, the Plan shall provide the benefits and be operated in accordance with the requirements of any applicable Federal or Provincial law.
- What we consider to be largely determinative of this issue is the Certification provision of the Canadian Plan, which is contained on the last page of the document, when read in context of section 1.7 of the initial trust document. The certificate is signed by two of the trustees at that time (Messrs. Flynn and Carlisle), and reads as follows:
CERTIFIED, the attached is true and correct copy of the Pension Plan (as amended and restated effective January 1, 1993) adopted by the Board of Trustees of the International Union of Bricklay-ers and Allied Craftsmen, Local Union Officers and Employees Pension Plan of Canada, at a meeting held on 29 September, 1992.
The certificate was executed by Messrs. Flynn and Carlisle on June 25, 1993, and it would appear from the face of the Canadian Plan document that it was filed with the Pension Commission of Ontario on June 29, 1993 - two business days later. We point out here that the last page of the American Plan was missing from the documents provided by counsel, and therefore we are unable to compare the Canadian and American Plans in this regard.
- Section 1.7 of the initial trust document defines the term "Plan" or "Pension Plan" for the purposes of the trust document and reads as follows:
The term "Plan" or "Pension Plan" means the Plan document together with any amendments or interpretations thereof duly adopted by the Trustees.
It is evident to us, from the certificate appended to the Canadian Plan, that on September 29, 1992 the trustees as identified by the trust document met and adopted a specific Canadian plan speaking to pension and other obligations for local union officials and employees of local unions in Canada. Utilizing the authority given to them pursuant to section 1.7 of the trust document, the trustees have, by way of amending the initial pension plan, altered the structure of the pension plan applicable to employees and officers of local unions by creating a plan specifically tailored to Canadian law. Furthermore, the trustees have filed the Canadian Plan with the Pension Commission of Ontario, identifying it as the plan now applicable to employees and officers of its related local unions in Ontario.
There can be no doubt, from the documentary materials filed with the Board, that the trustees have treated the Canadian Plan as separate from the American Plan. Counsel for the applicants filed with the Board various memoranda from the trustees addressed to "Canadian Plan Participants" or "Plan Participants in Canada" that deal with benefit improvements and plan amendments. These documents, some dated as early as 1987, suggest (but do not explicitly state) that what we have described here as "the Canadian Plan" may have initially been established well before the September, 1992 meeting of trustees described above. In our view, the initial date of the Canadian Plan is not relevant, for it is clear that, at all relevant times for the purposes of this proceeding, the Canadian Plan was effective.
In further support of our conclusion, we make reference to the Annual Information Return filed by the International with the Ontario Ministry of Finance as required by the Pension Commission of Ontario. The latest return filed by the International is dated September 24, 1997, and identifies that all of the required contributions to the Canadian Plan were made during the 1996 calendar year. The form contains a breakdown of membership information at the end of the reporting period (i.e. as at December 31, 1996). The author of the form identifies 36 male and 10 female members of the plan, none of which is identified as being resident outside of Canada. (In fact, the parties agreed at the hearing that the Canadian Plan is applicable to 46 employees and officers of local unions in Canada, 28 of which reside in Ontario.) It is evident that the author of the Annual Information Return was of the view that the Canadian Plan was applicable to officials and employees working for unions affiliated with the International in Canada.
In these circumstances, we have no hesitancy in concluding that the Canadian Plan is the plan that is subject to the requirements of section 150 of the Act. It is true that the financial statements and auditor's report identify one plan, and appears to reflect one common pool of assets and liabilities (though "segmented" to reflect Canadian and American assets and liabilities) and common administra-tion. There may well be some reason unique to American pension and benefit legislation that this is so. Or it may be merely administratively efficient to do so. It suffices to say that we are not satisfied that the mode of presentation of financial information by an auditor on financial statements or a common administrative infrastructure ought to lead us to conclude that there is but one pension plan, and that the Canadian Plan is but an included portion of the greater whole, particularly in light of the structure of the Canadian Plan and the other factors identified above.
III. Is the Canadian Plan an "Employment Benefit Plan"?
As noted above, the Board entertained the submissions of the parties on the question of whether the provisions of section 150 of the Act apply to the Canadian Plan. Although we had not, at the time we heard argument, concluded whether one or two plans existed, the fundamental structure of the Canadian and American Plans are sufficiently similar that it was possible to argue the issue without having first reached any conclusion on which of the two plans governed the officers and employees of the Canadian locals.
In essence, counsel for the applicants states that the Canadian Plan fits nicely within the broad wording of the defined term "employment benefit plan" (see subsection 150(6) of the Act, set out above), and therefore that the provisions of section 150 ought to apply to the circumstances. He observed that the Canadian Plan provides various benefits (pension, disability, and death benefits) to individuals and/or their dependents or beneficiaries because of that individual's employment (and, in the case of local union officials, because they are required to be members of the trade union). There is no dispute that the three Ontario locals contribute to the Canadian Plan on behalf of their officers and employees, in accordance with the terms of the Canadian Plan. Given the broad wording of the provision, and the principle enshrined by section 10 of the Interpretation Act (R.S.O. 1990, c. 1.11) that all legislation ought to be considered to be remedial in nature, and given a large and liberal interpreta-tion, counsel for the applicants submits that no other conclusion can be reached by the Board but that the Canadian Plan is subject to section 150 of the Act.
In response, counsel for the responding parties urges the Board to conclude that section 150 of the Act was never intended to cover employment benefit plans which are not jointly-trusteed. That is, counsel argues that the rights created by section 150 of the Act were intended to apply to situations where representatives of both employers and trade unions are joint trustees of a benefit plan which applies to employees of employers participating in the plan. This is an entirely different situation. Here, the Canadian Plan is not a traditional, jointly-trusteed plan but rather is a plan created by the Interna-tional for employees and officers of its locals in Ontario. In support of this proposition, counsel reviewed with the Board (without objection from opposing counsel) minutes of the Standing Committee on Resources Development of the Ontario legislature dated November 15, 1993, during which the then Deputy Minister of Labour, James R. Thomas, discussed the proposed Bill 80 amendments, including the predecessor to section 150. Counsel also noted during argument that each of subsections 150(1) to (3) specifically contains the words "excluding the trustees who are appointed by employers", and submits that the inclusion of these words makes it evident what the legislature was intending to address by these provisions.
We have considered quite carefully the arguments of both counsel. We are of the view that the Canadian Plan is an "employee benefit plan" for the purposes of section 150 of the Act. As is noted by counsel for the applicants, the words used in the Act to define the concept of "employment benefit plan" are quite broad, and easily encompass the type of benefit plan identified in this proceeding. The Canadian Plan provides benefits to individuals and/or their dependents because of that individual's employment with or membership in Locals, 1, 2 or 5.
The minutes of the Standing Committee of the legislature respecting the Bill 80 amendments are ambiguous and therefore unhelpful, even if we felt that it was appropriate to consider them, which we do not. In our view, the opinion of a Deputy Minister of Labour respecting the purpose of legislation is not probative of the intention of the legislature.
The specific exclusions contained in subsections 150(1) to (3) of employer-appointed trustees do not lead us to conclude that section 150 of the Act was intended to apply only to jointly-trusteed benefit plans. The wording contained in section 150 of the Act was drafted in the context of "employment benefit plans" that do not have joint trusteeship, such as the plan before the Board, of which the legislature is presumed to have been knowledgeable. Section 150 clearly anticipates that jointly-trusteed benefit plans will be subjected to its terms and makes specific provision for that eventuality. But there is no suggestion that the only employment benefit plans that may be caught by its terms will be of that nature. If that were the intention of the legislature, one would have thought that the definition of the term "employment benefit plan" would have been itself structured so as to exclude any type of plan other than those which are jointly-trusteed. The definition of that term clearly does not do that. Instead, it captures a wide variety of benefit plans within its purview, consistent with the overall thrust of Bill 80, which is to ensure greater local union autonomy in the construction industry.
Accordingly, we are of the view that the Canadian Plan is an "employment benefit plan" as defined by subsection 150(6) of the Act, and therefore that it is governed by the terms of section 150 of the Act.
IV. Does Section 150 Otherwise Apply?
There does not appear to be much dispute regarding the applicability of subsections 150(2) and (3) of the Act to the circumstances before the Board. It was agreed by the parties that the Canadian Plan applied to 46 persons in Canada, 36 local union officials and 10 employees. The 36 local union officials are members of their respective locals. In our view, these facts establish that benefits under the Canadian Plan are provided "primarily to members of more than one local trade union or to their dependants or beneficiaries" for the purpose of subsection 150(2) of the Act.
It would also appear beyond dispute that subsection 150(3) of the Act applies to the circumstances. That is, benefits are, in fact, provided to members outside of Ontario or to their dependents. Of the 46 local union officials and employees governed by the terms of the Canadian Plan, 28 (21 local union officials and seven employees) are from Ontario. In accordance with the terms of subsection 150(3), the local trade unions are entitled together to appoint "that proportion of the trustees that corresponds to the proportion that the members in Ontario of the local trade unions bear to the total number of members participating in the plan" (emphasis added). In this case, the local trade unions are entitled to appoint the proportion of 21/36, or 58.33% of the trustees of the Canadian Plan.
We note here that we heard argument from the parties regarding the question of the identity of the employer or employers for the purposes of the Canadian Plan and section 150 of the Act. It was the position of the applicants that there were a "multitude" of employers under the Canadian Plan, including the OPC, and Locals 1, 2 and 5. It was the position of the applicants that the International was not an employer for the purposes of this proceeding. The International, on the other hand, asserted that Locals 1, 2 and 5 were employers for the purposes of this proceeding, as was the International, which it characterized as the "ultimate employer". Accordingly, all of the parties agreed, at the very least, that Locals 1, 2 and 5 were employers for the purposes of this proceeding.
Subsection 150(3) of the Act excludes from its terms "trustees appointed by employers". It was this aspect of section 150 of the Act which caused the International to conclude that the Canadian Plan ought not to be subject to the Act, having regard to the fact that Locals 1, 2 and 5 are "employers" for the purposes of section 150. There is some merit to that position, as the application of the provision in some cases could be difficult to effect if the "local trade unions" are also "employers" under the plan and the Act. In this particular case, those difficulties are theoretical, because the five trustees currently seated are all appointed by the International, and we are of the view that the International is not an employer for the purposes of this proceeding or the Canadian Plan. The "employer" of the pertinent local union officials and employees are the locals themselves. It is the locals themselves that make contributions to the Canadian Plan, and not the International. While the International may be at or nearer the top of the pyramid from an affiliation perspective, that is insufficient to establish "employer" status ("ultimate" or otherwise) of the local union officers and others who benefit from the Canadian Plan for the purposes of this proceeding. Accordingly, there are currently no "trustees appointed by employers" and those words in subsection 150(3) have no effect on the success or failure of this application.
V. Remedy
During the course of the hearing, counsel addressed the issue of remedy in the event we were to find in favour of the applicants on the section 150 application, as we have now done. Counsel argued the applicability of section 149 of the Act to the circumstances, and the need to provide certain declarations, directions and orders requested by the applicants.
It is evident that the responding parties have violated section 150 of the Act by refusing to accept the right of the applicant local unions to appoint trustees to the Canadian Plan. There was no challenge made by the responding parties regarding the appointment process utilized by the three local unions to appoint Messrs. Buttazzoni, Wilson and Haggis as trustees of the Canadian Plan. Accordingly, it is not in dispute that the process utilized was in accordance with subsection 150(5) of the Act. However, the International refused to recognize the right of the local unions to seat trustees on the Canadian Plan, and this is clearly in contravention of section 150 of the Act. We so declare.
At this stage, however, we will not make any further remedial order beyond that made immediately above. We do so for a number of reasons. First, the remedial orders requested by the applicants were premised, presumably, on the belief that the Ontario local unions had a proportion of members in the Canadian Plan that exceeded 60 percent. There were five trustees of the Canadian Plan at the time of the application. Accordingly, the applicants assumed, no doubt, that success in this application would permit them to seat three of the five trustees, and they elected Messrs. Buttazzoni, Wilson and Haggis. It is evident that the local unions are entitled only to 58.33% of the trustees of the Canadian Plan. As a practical matter, this may result in the applicants seating the three individuals identified above as trustees. Or it may not. We think it best to remit this issue back to the parties for discussion. At this stage, we are unwilling to declare that all three of the trustees are entitled to sit as trustees, and we are unwilling to arbitrarily choose two of the three ourselves.
Just as importantly, we are of the view that some of the relief requested is premature. For example, the applicants have requested of the Board that it direct the remaining trustees of the Canadian Plan to provide the three named trustees "with all information and documentation that trustees are entitled to under the Pension Plan and the laws of Ontario". A direction of that nature may be somewhat unnecessary. It appears to us that the responding parties had a bona fide argument respecting the applicability of section 150 to the circumstances, and the decision made by the International to not accede to the request of the applicants to seat three trustees on the Canadian Plan was not patently unsupportable. Given this decision, it can be anticipated that the trustees named by the local unions will in the future obtain any and all information and documentation to which they are entitled. However, if problems do arise, the applicants may have various remedial options available to them, in various forums.
Finally, and in a related vein, we are of the view that it is not appropriate to consider the applicability of section 149 to the circumstances of this case. The Board has a discretion to decline to consider any application brought under section 96 of the Act, such as one launched pursuant to section 149 of the Act. This case is clearly one of first impression, and the position taken by the responding parties, as indicated above, had some merit. In these circumstances, even if we were to conclude that the International had, without just cause, "otherwise interfered" with the local trade unions, we would not issue any remedy other than a declaration reflecting that interference. In the context of the current litigation pending at the Board between the parties, we do not consider it conducive to good labour relations to consider or rule on the section 149 application.
We will remain seized of this proceeding.
CONCURRING OPINION OF BOARD MEMBER G. McMENEMY; July 15, 1998
While I agree with the decision in this case, I would like to make a comment on the issue of good labour relations as noted in paragraph 44.
This case is the latest in a long and expensive series of cases that deal with the issue of the power of the parent international union over their Ontario affiliates.
It has to be obvious to all the parties and especially the International Union that the Ontario Labour Relations Act ("Act") mandates different treatment of the Ontario locals and their members than, for example, local unions in Texas and their members.
I would suggest very strongly that there has to be change in the relationship between the parties to this proceeding. I think it is clear that the Act mandates a change in attitude, and certainly this decision, coupled with the other decisions between these parties reflects a change of attitude.
Since this case began and the final decision has been released there have been major changes again to the Act.
If the history of the legal decisions between these parties do not suggest a change of attitude is needed, then the changes to the Act should.
Money spent on this continued battle between the International and the Ontario Provincial Conference and its affiliated locals could be better and more usefully spent elsewhere.